Florida Appeals Court Says Challengers Of Tax Credit Scholarships Lack Standing

In McCall v. Scott, (FL App., Aug. 16, 2016), a Florida appeals court held that a group of plaintiffs-- advocacy organizations, teachers, parents and religious and community leaders-- lack standing to challenge the constitutionality of Florida's Tax Credit Scholarship Program.  The court concluded that plaintiffs had not shown either special injury standing or taxpayer standing. It concluded, among other things, that the state constitution's "no-aid" provision (Florida's Blaine Amendment) only limits the legislature's spending authority, and not its authority to grant tax deductions or credits. Pensacola News Journal reports on the decision.

State Department Issues 2015 International Religious Freedom Report

Last week, the U.S. State Department issued its 2015 Annual Report on International Freedom.  In an August 10 press conference presenting the report, Deputy Secretary of State Antony J. Blinken (full text of remarks) said in part:

[T]he purpose of this annual report is not to lecture; it is to inform, to encourage, and ultimately, to persuade. Bigotry and intolerance can be found in every part of the world, including the United States. But every country has an obligation to respect religious liberty and freedom of conscience; we encourage every country to do so. This report, which is based on a wealth of objective research, is one of many ways we give life to that advocacy....

This past March, Secretary Kerry made clear his judgment that Daesh is responsible for genocide against religious communities in areas under its control.... They’ve not only killed, they’ve sought to erase the memory of those they’ve killed, destroying centuries-old religious cultural sites.

Naming these crimes is important, but our goal is to stop them. That’s why President Obama has mobilized a coalition of more than 65 partners from every corner of the world to combat and ultimately defeat Daesh.

Ambassador-at-Large for International Religious Freedom David Saperstein also spoke at the press conference and answered reporters' questions. (Full text of remarks.) He said in part:

While the report touches on all manner of restrictions to religious freedom, I want to highlight this year the chilling, sometimes deadly effect of blasphemy and apostasy laws in many places of the world, as well as laws that purport to protect religious sentiments from defamation. Roughly a quarter of the world’s countries have blasphemy laws, and more than one in 10 have laws or policies penalizing apostasy, and the existence of these laws has been used by governments in too many cases to intimidate, repress religious minorities, and governments have too often failed to take appropriate steps to prevent societal violence sparked by accusations of blasphemy and apostasy. And when these claims turn out to be blatantly false accusations made to pursue other agendas, governments will often fail to act to hold perpetrators accountable. These government failures weaken trust in the rule of law, creating an atmosphere of impunity for those who would resort to violence or make false claims of blasphemy.

UPDATE: In connection with the State Department report, the White House issued a Fact Sheet: Promoting and Protecting Religious Freedom Around the Globe. Also the U.S. Commission on International Religious Freedom issued a press release welcoming the State Department's report and urging additional actions under the International Religious Freedom Act.

Texas AG Opinion OK's Courtroom Chaplains

Texas Attorney General Ken Paxton yesterday issued Attorney General Opinion No. KP-0109 (Aug. 15, 2016), responding to three Establishment Clause concerns.  The Opinion first concludes:

Courts do not violate the Establishment Clause by opening court proceedings with a statement such as, "God save the State of Texas and this Honorable Court."

It then moves to questions about the more controversial practice of a Texas justice of the peace who is also the county coroner.  As previously reported the judge created a volunteer chaplaincy program to help grieving family, friends and witnesses at death scenes to which the coroner is called.  To recognize these volunteer chaplains, they are also invited to give a brief prayer to open justice of the peace court proceedings. The state's Commission on Judicial Conduct had urged an end to these practices.  However, yesterday's AG opinion concluded that each of these practices is constitutional. A press release from First Liberty Institute discusses the AG opinion.

FLDS Fraud Defendant Says 1st Amendment Protects His Letters To Jailed Leader

As previously reported, in February eleven members of the polygamous FLDS Church were indicted on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  Now, as reported by Fox13 News, one of those defendants, Preston Barlow, is objecting to a change in the conditions of his pretrial release.  Earlier this month after he was incorrectly charged with violating conditions of his release, the limits on his contacting co-defendants were expanded to include a ban on any contact with FLDS leader Warren Jeffs who is in prison on other charges. In a motion (full text) filed with the Utah federal district court yesterday, Barlow argued that there is no basis for the expansion, and that it violates his religious freedom rights, saying:

The tenets of Mr. Barlow's sincerely held religious beliefs require him to maintain a conduit of connection and communication with his prophet. He does so by writing to Warren Jeffs approximately one time per month. The writings do not generate a direct response from Warren Jeffs.... [R]estricting the communication would have a devastating impact on Mr. Barlow's religious practice, and on his ability to maintain such religious practice consistent with what  he believes are the necessary requirements for eternal salvation.

Olympic Village Now Includes Brazilian-African Religions With Others

Crux reported yesterday that in Olympic Village in Rio de Janeiro, the interfaith center this year includes priests from the Brazilian-African Candomble and Umbanda faiths.  When the International Olympics Committee initially chose only five official religions-- Christianity, Islam, Judaism, Buddhism and Hinduism-- to be represented, Brazil's Federal Public Ministry (at the urging of activists) complained arguing that the religious diversity of the host country needed to be represented.  Brazilian law gives Africa-based religions proportional representation in official activities in the country.

Deed Restrictions Upheld To Prevent Construction of Synagogue

In Welch v. Chai Center For Living Judaism, Inc., (NJ App., Aug. 15, 2016), a New Jersey appeals court upheld the enforcement of a deed restriction that prevents an Orthodox Jewish group from constructing a synagogue with classrooms, social hall and playrooms on property it owns.  The restrictions limit property use to a single-family residence. The court said in part:

We are unpersuaded by defendants' suggestion the Center must be permitted to conduct prayer groups and social gatherings as a free exercise of religion. We reject the suggestion the deed restriction unconstitutionally prohibits private religious observances within the confines of one's own home.

New Jersey Appeals Court OKs Religiously Discriminatory Disinheritance

In In re the Estate of  Kenneth E. Jameson, (NJ App., Aug. 12, 2016), a New Jersey appeals court
held that New Jersey law does not bar an individual from disinheriting his or her child for religiously discriminatory reasons. At issue was a will challenge by Stacy Wolin whose parents' wills were drafted when she was in college and in a romantic relationship with Marc Wolin, a Jewish man who she later married.  Her Catholic parents objected strenuously to her dating Marc because of his Jewish faith.  The court rejected a series of challenges to the father's will, including ones charging religious discrimination, saying that neither the New Jersey Law Against Discrimination nor New Jersey public policy bars disinheriting a child based on religion or religious affiliation.  AP reports on the decision.  [Thanks to Tom Rutledge for the lead.]

Two Recent Cases Charging Religious Discrimination In Employment

Two recent lawsuits charging religious discrimination in employment are in the news.  In Bowling Green, Kentucky, a former firefighter sued claiming questioning and harassment over his atheist beliefs as well as over his non-conformity to gender norms.  The complaint (full text) in Queen v. City of Bowling Green, (KY Cir. Ct., filed 8/10/2016) contends that plaintiff was subjected to a hostile work environment on the basis of his religious beliefs in violation of Kentucky law. WKU Herald reports on the lawsuit.

Separately, in Dallas, Texas, last Wednesday an Orthodox Jewish woman filed suit against the county after her job offer as data manager with the Dallas County sheriff's office was rescinded.  The sheriff's office acted after plaintiff, Isabel Balderas, told them that she would need an accommodation allowing her to leave 30 minutes early on Fridays during the winter months in order to be home for the beginning of the Sabbath. The sheriff's office said that the data manager position requires that the person be on call 24/7. Dallas News reports on the lawsuit.

Pastors Sue Over Illinois Ban on Conversion Therapy

A group  of pastors filed suit last week in Illinois federal district court challenging the application to them of a provision in the Illinois ban on sexual orientation change therapy.  At issue is Sec. 25 of the Act that provides no person in the conduct of any trade or commerce may offer conversion therapy services by representing that homosexuality is a mental disease, disorder, or illness. (See prior posting.) The complaint (full text) in Pastors Protecting Youth v. Madigan,  (ND IL, filed 8/11/2016) seeks a declaratory judgment that pastors fall outside the act because they are not engaged in any "trade or commerce," as well as a declaration that the provision violates plaintiffs' free speech, free exercise and due process rights and the rights of those they counsel. The complaint explains the pastors' position in part as follows:

32. While plaintiffs speak, teach and counsel others that all types of sin are a disorder and a product of the Fall of mankind, the Act only prohibits the pastors from representing that homosexual conduct is a sin or disorder.  The Act, therefore, dictates which parts of the Bible pastors may or may not use to counsel their counselees.

33. Because the plaintiffs adhere to traditional Christian theology which teaches that homosexual conduct is contrary to the will and intended order of God, Plaintiffs also believe that homosexual conduct, like any other sin, can be overcome by the power of Jesus Christ.

 Washington Post reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Michael Makovi, Price-Controls in Jewish Law, (August 1, 2016).
• John Copeland Nagle, Humility and Environmental Law, (10 Liberty University Law Review 335 (2016)).
• Nicholas Aroney, Joel Harrison & Paul T. Babie, Religious Freedom Under the Victorian Charter of Rights, (Matthew Groves and Colin Campbell (eds), Australian Charters of Rights a Decade On (Federation Press, 2016)).

Journal of Law and Religion, Vol. 31, No. 1, has recently been published.

Trenton Curfew Arrangement With Churches Is Questioned

AP reports today on the church-state questions that are being raised by the juvenile curfew enforcement policies of the Trenton, New Jersey police department. Last month Trenton police began enforcing a midnight to 6 a.m. curfew for juveniles under 18.  If police pick up a violator, they first call the juvenile's parents.  However if the parents do not answer, or refuse to pick up their child, police under arrangements with a number of faith-based groups drop the juvenile off at a local church. Police say that the churches may not discuss religion with the drop offs, and they are usually held in a community room rather than in the sanctuary.  The juvenile is given the option of instead being dropped off at a police building. The ACLU says that police should provide a number of non-religious drop-off alternatives, though the group has broader objections to the curfew as well.

Recent Prisoner Free Exercise Cases

In Sims v. Owens, 2016 U.S. Dist. LEXIS 105341 (MD GA, Aug. 10, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 105554, July 22, 2016) and dismissed a suit by a Rastafarian inmate who was not permitted to grow a goatee.

In Glidden v. Cerliano, 2016 U.S. Dist. LEXIS 105928 (ED TX, Aug. 10, 2016), a Texas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 106356, June 24, 2016) and dismissed a suit by an inmate who had recently changed his religious preference to Pagan, but was not permitted to take possession of a book sent to him titled Buckland's Complete Book of Witchcraft, and was not permitted to meet with a Coven priestess.

In Hoke v. Lyle, 2016 U.S. Dist. LEXIS 106912 (SD GA, Aug. 8, 2016), a Georgia federal magistrate judge recommended that a Christian inmate be allowed to proceed with certain RLUIPA, free exercise and equal protection claims regarding the refusal to provide him with a study Bible and his Bible lessons.

In Hunter v. Corrections Corporation of America, 2016 U.S. Dist. LEXIS 105035 (SD GA, Aug. 9, 2016), a Georgia federal magistrate judge recommended denying summary judgement to either side in a Muslim inmate's Establishment Clause and RLUIPA claims (but only for nominal damages) challenging the Georgia prison system's Life Principles Program.

French Mayor Bans Muslim Burkinis On Beach [UPDATED]

In an order issued on July 28, but first publicized last week, the mayor of the seaside French city of Cannes has banned swimwear that does not reflect "good morals and secularism."  The order, which is effective through August, is aimed at preventing Muslim women from wearing burkinis-- full-body swimsuits.  According to NBC News, the mayor said that after last month's terrorist attack in nearby Nice killing 80 people and the subsequent attack on a church:

Beachwear manifesting religious affiliation in an ostentatious way, while France and its religious sites are currently the target of terrorist attacks, could create the risk of disturbances to public order.

UPDATE: Qantara reports that  an Aug. 13 court decision upheld the Cannes ban:

Three women backed by the Collective Against Islamophobia in France (CCIF) challenged the Cannes decision.... But a court in Nice rejected the request, saying the move was legal under French law forbidding people from "invoking their religious beliefs to skirt common rules regulating relations between public authorities and private individuals".

Meanwhile the resort of Villeneuve-Loubet imposed a similar ban.

Ethics Complaints Are Newest Tool In Wars Over Same-Sex Marriage

Legal ethics complaints appear to have become the most recent weapon in the culture wars.  After the Southern Poverty Law Center filed a series of complaints with the Alabama Judicial Inquiry Commission against Alabama Chief Justice Roy Moore (see prior posting), an ally of Moore's has turned the tables.  On July 28, Alabama attorney Trent Garmon and his wife Holly filed a complaint against Richard Cohen, president of the Southern Poverty Law Center, over Cohen's comments attacking Moore for Moore's actions opposing same-sex marriage.  As reported by AL.com, the complaint alleges that Cohen's statements violated Alabama Rules of Professional Conduct, Rule 8.2 that provides;

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, 

Cohen's comments included a statement that Alabama "elected [Moore] to be a judge, not a pastor;" Cohen called Moore a demagogue and the "Ayatollah of Alabama," and said he is unfit for office.

Muslim Woman Sues Chicago Police Charging Profiling and False Arrest

Chicago Tribune reports on a federal civil rights lawsuit filed yesterday against the city of Chicago and 6 of its police officers by a Muslim immigrant from Saudi Arabia who says she was assaulted and wrongly arrested by police officers who profiled her as a possible suicide bomber, apparently in part because she was wearing a hijab and niqab. Her suit alleges use of excessive force, false arrest, unlawful search, malicious prosecution and violation of Al-Matar's right to freedom of religious expression.  The arrest took place on July 4, as Al-Matar was walking to catch a train home to break the Ramadan fast.

Texas AG Cleared of Ethics Charges Over Reaction To Same-Sex Marriage Ruling

Texas Tribune reports that in an Aug. 3 notice, the State Bar of Texas announced that it is dismissing an ethics complaint signed by over 200 Texas lawyers claiming that Texas Attorney General Ken Paxton "violated his own official oath of office" last summer when he issued an Opinion and statement on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. According to the notice: "The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct."

Settlement Reached In Suit Over Sheriff's Religious Use of Department's Facebook Page

A settlement agreement has been reached in American Atheists, Inc. v. Watson, a suit alleging that Bradley County, Tennessee Sheriff Eric Watson used the sheriff department's Facebook page to promote the sheriff's Christian religious beliefs. (See prior posting.)  According to an American Atheists press release yesterday, under the settlement the county will pay $15,000 in damages to American Atheists and the local plaintiffs as well as $26,000 in attorney’s fees.  Also under the settlement, the Sheriff’s Department  will create a new, information-only, Facebook page that will not be used to "promote or further any religion, religious organization, religious event or religious belief." The original Facebook page has already been deactivated.  Sheriff Watson will be allowed to maintain a clearly marked personal Facebook page reflecting his personal opinions.

Native American Cannot Claim Religious LiIberty Defense In Prosecution for Unlawful Hunting

In State of Washington v. McMeans, (WA App., Aug. 9, 2016), a Washington state appeals court upheld a trial court's refusal to give the jury an instruction on a free exercise defense asserted by a Yakima Tribe designated hunter in a prosecution of him for unlawful hunting.  Defendant Ricky Watlamet killed 4 elk to provide meat for the funeral of a tribal elder.  The elk harvesting took place outside of elk hunting season on land of co-defendant who sought help to get rid of elk damaging her property.  Under an 1855 treaty, the Yakima tribe is allowed to hunt on "open and unclaimed lands," but not private property.  The court said in part:

The defense presented substantial evidence that Mr. Watlamet had sincere religious beliefs and that he used the elk meat for religious purposes. However, he did not provide any evidence that the McMeans property was the only available location to obtain the elk meat. In fact, the record shows that Mr. Watlamet could lawfully hunt elk on State land, Federal land, tribal land, or any open and unclaimed land. The record also indicates that at the time in question there were numerous elk on the reservation as well as elk on state land adjacent to the McMeans property. Mr. Watlamet could have hunted these elk without running afoul of any regulation. He presented no evidence that either these particular elk or this particular place were necessary, preferable, or even convenient, nor has he presented any evidence that hunting the lawfully available elk was in any way burdensome. 

Armed Forces Court of Appeals Interprets RFRA In Military Context

In United States v. Sterling, (US Armed Forces Ct. App., Aug. 10, 2016), the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations.  Appellant, in the wake of other personnel issues, posted 3 signs reading "[n]o weapon formed against me shall prosper."  The signs did not indicate that these were Bible verses. She refused orders to remove them and was court martialed.  The majority held in part:

while the posting of signs was claimed to be religiously motivated at least in part and thus falls within RFRA’s expansive definition of “religious exercise,” Appellant has nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion or how the removal of the signs substantially burdened her exercise of religion in some other way. We decline Appellant’s invitation to conclude that any interference at all with a religiously motivated action constitutes a substantial burden, particularly where the claimant did not bother to either inform the government that the action was religious or seek an available accommodation.

The court spelled out its understanding of what must be shown to establish that the government imposed a substantial burden on appellant's religious exercise:

[W]hile we will not assess the importance of a religious practice to a practitioner’s exercise of religion or impose any type of centrality test, a claimant must at least demonstrate “an honest belief that the practice is important to [her] free exercise of religion” in order to show that a government action substantially burdens her religious exercise.... A substantial burden is not measured only by the secular costs that government action imposes; the claimant must also establish that she believes there are religious costs as well, and this should be clear from the record....

In contrast, courts have found that a government practice that offends religious sensibilities but does not force the claimant to act contrary to her beliefs does not constitute a substantial burden.... We reject the argument that every interference with a religiously motivated act constitutes a substantial burden on the exercise of religion. 

Contrary to Appellant’s assertions before this Court, the trial evidence does not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.

Judge Ohlson dissented, saying in part:

Unfortunately, instead of remanding this case so that it can be properly adjudicated by the court below, the majority instead has chosen to impose a stringent, judicially made legal standard in this and future religious liberty cases that is not supported by the provisions of RFRA. Contrary to the majority’s holding, the plain language of the statute does not empower judges to curtail various manifestations of sincere religious belief simply by arbitrarily deciding that a certain act was not “important” to the believer’s exercise of religion.  Neither does the statute empower judges to require a believer to ask of the government, “Mother, may I?” before engaging in sincere religious conduct. And further, nowhere in the statute are service members required to inform the government of the religious nature of their conduct at the time they engage in it.

[Thanks to ChristianFighterPilot.com for the lead.] 

Britain's Supreme Court Refers Complex Transgender Case To European Court of Justice

In MB v. Secretary of State for Work and Pensions, (UK Sup. Ct., Aug. 10, 2016), Britain's Supreme Court, divided on a complicated issue of transgender rights under European Council Directive 79/7/EEC (Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security), referred the following question to the Court of Justice of the European Union:

[W]hether Council Directive 79/7 EEC precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.

As permitted by the Directive, Britain allowed women to obtain a retirement pension at an earlier age than men.  However a transgender woman needed a full gender recognition certificate to qualify for the earlier pension, and under British law at the time could not obtain one if she remained married.  The facts of the case are summarized in the Court's press release:

So far as MB was concerned, she was registered at birth as a man but has lived as a woman since 1991 and underwent gender reassignment surgery in 1995. She has not applied for a full gender recognition certificate because she and her wife are married and wish to remain so.... On 31 May 2008, MB turned 60 [and] ... applied for a state retirement pension.... That application was rejected....

EurActiv reports on the decision.  [Thanks to Paul deMello for the lead.]